Citation Nr: 0331355
Decision Date: 11/13/03 Archive Date: 11/25/03
DOCKET NO. 02-02 696 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to a disability rating in excess of 30 percent
for post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. E. Smith, Counsel
INTRODUCTION
The veteran had active military service from September 1969
to April 1971.
This matter comes before the Board of Veterans' Appeals on
appeal from a May 2001 rating decision by the Department of
Veterans Affairs (VA) Huntington, West Virginia Regional
Office (RO), which denied the veteran's claim of entitlement
to a disability rating in excess of 30 percent for PTSD. The
veteran filed a notice of disagreement in September 2001. In
January 2002, the RO furnished the veteran a statement of the
case. In March 2002, the veteran filed his substantive
appeal (VA Form 9).
REMAND
The Board notes that during the pendency of the appeal, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) [codified at 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)] and
the regulations implementing it are applicable to the
veteran's request to reopen a previously denied claim.
The Act and the implementing regulations essentially
eliminate the requirement that a claimant submit evidence of
a well-grounded claim, and essentially provide that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim if there is a reasonable possibility
that such assistance would aid in substantiating the claim.
They also require VA to notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant.
With respect to the issue of entitlement to a disability
rating in excess of 30 percent for PTSD, the Board notes that
while the RO sent the veteran a letter in December 2001 that
referred in general to a reopened claim for an increased
rating, and specifically noted that the veteran had filed a
claim for PTSD, this letter merely advised the veteran of the
types of evidence necessary to show that a previously denied
claim for entitlement to service connection should be
reopened because new and material evidence has been received
since the prior denial. As such, neither the veteran nor his
representative were provided with any notice of the
information and medical and/or lay evidence necessary to
substantiate the veteran's claim for an increased rating,
i.e., evidence tending to show that the veteran meets the
criteria for the next higher rating for PTSD). Hence, there
is nothing in the record that satisfies the notification
requirements of the VCAA, and action by the RO is needed to
satisfy those requirements. See Disabled American Veterans
v. Principi, 327 F.3d 13399 (Fed. Cir. 2003).
In his Substantive Appeal to the Board (VA Form 9), received
in March 2002, the veteran indicated that he desired a
personal hearing before a Decision Review Office (DRO) in
connection with his current claim. While the VA Form 9, as
pointed out by the RO in a memo to the veteran's
representative that same month, is not the proper vehicle for
initiating a request for a local hearing with a DRO the
veteran's request for a hearing is nevertheless valid and
remains outstanding.
Additionally, the veteran in a statement received by the
Board in May 2003 reported that in April 2003 he underwent a
VA examination relevant to his claim for an increased
evaluation for his PTSD. The examination report, as
requested by the veteran, should be obtained and considered
in connection with his current appeal.
Finally, in a decision promulgated on September 22, 2003,
Paralyzed Veterans of America v. Secretary of Veterans
Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir.
September 22, 2003), the United States Court of Appeals for
the Federal Circuit invalidated the 30-day response period
contained in 38 C.F.R. § 3.159(b) (1). The Federal Circuit
made a conclusion similar to the one reached in Disabled
American Veterans v. Secretary of Veterans Affairs, 327 F. 3d
1339, 1348 (Fed. Cir. 2003) (reviewing a related Board
regulation, 38 C.F.R. § 19.9). The Court found that the 30-
day period provided in 38 C.F.R. § 3.159(b) (1) to respond to
a VCAA duty to notify is misleading and detrimental to
claimants whose claims are prematurely denied short of the
statutory one-year period provided for response. Therefore,
since this case is being remanded for additional development
or to procure a procedural defect, the RO must take this
opportunity to inform the appellant that notwithstanding the
information previously provided, a full year is allowed to
respond to a VCAA notice.
In view of the above this case is REMANDED to the RO for the
following actions:
1. With respect to the claim of
entitlement to a disability rating in
excess of 30 percent for PTSD, the RO
should send the veteran a letter that
complies with the notification
requirements of the VCAA, to specifically
include 38 U.S.C.A. §§ 5102, 5103, and
5103A (West 2002), and any other
applicable legal precedent.
2. The RO should contact the veteran and
ask that he identify the source and
nature of evaluation and treatment
provided to him for his service-connected
PTSD since January 2002. A copy of the
examination report referred to by the
veteran in his statement of May 2003 and
any other records identified by the
veteran and not currently on file should
be obtained by the RO and associated with
the veteran's claims file.
3. The RO should contact the veteran in
writing to determine whether he still
wants a hearing before a Decision Review
Officer (DRO) at the local regional
office, and; if he does, the RO should
schedule the hearing and properly notify
him of this hearing.
4. Thereafter, and after any other
appropriate development, the RO should
readjudicate the issue of entitlement to
a disability rating in excess of 30
percent for PTSD, in light of all
pertinent legal authority and the
evidence of record. If the determination
remains adverse to the veteran, he and
his representative should be provided a
supplemental statement of the case and
afforded an opportunity to respond before
returning the claim file to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
Deborah W. Singleton
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).